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I’ve received questions from both prosecutors and defense lawyers about whether and how the state can obtain a suspect’s — or a defendant’s — medical records when those records may contain information relevant to a criminal investigation. The most frequently-asked questions are addressed in the scenario below. Take a look, and post a comment if you disagree with my analysis of the law.

Suppose that Dan Driver has a one-car accident. Ollie Officer responds to the scene. Because it is 2:00 a.m. and there is no obvious cause for the accident, Ollie suspects Dan of DWI. EMTs take Dan to the local hospital for treatment, and Ollie is not able to, or simply fails to, obtain a blood sample under the implied-consent laws. Ollie contacts Paul Prosecutor and asks him to obtain a court order for Dan’s medical records, which Ollie knows are likely to contain bloodwork reflecting Dan’s blood alcohol content. Paul agrees to seek the order, and prepares a motion and order under G.S. 8-53, which allows the disclosure of otherwise-privileged health care records if “necessary to a proper administration of justice.”

1. Is such an order even necessary? Generally, yes. Under G.S. 90-21.20B, a health care provider must, upon request, “disclose to any law enforcement officer investigating the crash” certain information about Dan, because he was involved in an accident, including “name, location, and whether the person appears to be impaired by alcohol [or] drugs.” But this does not appear to authorize health care providers to disclose Dan’s medical records, which are what Paul and Ollie want. Such records are privileged under G.S. 8-53, and so are not subject to disclosure absent a court order. Paul and Ollie might, alternatively, obtain a search warrant for the hospital, though the hospital may view a court order as less threatening.

2. What showing must the state make in order to obtain such an order? Likely, reasonable suspicion. Cf. In re Superior Court Order, 315 N.C. 378 (1986).

3. Suppose that no charges are pending against Dan. Must Paul give Dan any notice of his intent to seek a court order? Probably not. Since there are no charges pending, Dan is not a “party” to any proceeding, and G.S. 15A-951, which requires motions to be served, therefore does not apply. Likewise, Paul’s motion is technically not ex parte, as there is no opposing party. Moving for an order under such circumstances would be akin to seeking a search warrant, or to seeking an order under In re Superior Court Order, supra, either of which may be done without providing notice to the suspect.

4. Suppose that Ollie charged Dan with DWI prior to contacting Paul. Must Paul give Dan any notice of his intent to seek a court order? Probably so. Because Dan now is a party, G.S. 15A-951 requires that the motion be served on Dan. Furthermore, submitting the motion ex parte likely violates the Rules of Professional Conduct. See Rule 3.5(a)(3); 2001 FEO 15. The mere fact that G.S. 8-53 allows a court order to trump the physician-patient privilege says nothing about whether such orders may be obtained ex parte. Nor does State v. Jones, 133 N.C. App. 448, 463 (1999), allow such an ex parte motion. The court there stated that “[a]lthough the case law prohibits ex parte communications with a party’s health care provider in civil cases absent the party-patient’s express consent . . . defendant has cited no authority to extend this rule to criminal defendants.” Not only does Jones fall short of holding that ex parte contacts with health care providers are permissible, by its terms it applies only to such contacts, not to ex parte contacts with the court, which is, of course, where Paul’s motion would be filed.

5. If Paul fails to give notice to Dan but notice was required, what happens? Dan may be able, in effect, to contest the motion after the fact, by appealing the order and/or by moving to suppress the evidence produced in response to the order or moving in limine to exclude it. See State v. Miller, 80 N.C. App. 425 (1986). Thus, Paul’s failure to give notice does not necessarily prejudice Dan, and does not necessarily require the exclusion of evidence produced in response to the order. However, a judge probably could exclude the evidence, if so inclined and upon proper findings, under the statutory exclusionary rule in G.S. 15A-974.

6. Which records should the judge require the hospital to produce? The judge should not allow the state to review all of Dan’s medical records, which may contain private and irrelevant information. Instead, the court’s order should require the hospital to produce only medical records that are relevant to the issue of impairment, including the results of any blood tests. If the judge is in doubt about the relevance of certain records, the judge may require an in camera inspection of the records, after which the judge may disclose the relevant records and withhold the remainder.

5 comments on “Obtaining Medical Records under G.S. 8-53”

What are your thoughts about the HIPPA implications of a prosecutor obtaining an ex parte order for a defendant’s medical records-prior to a criminal charge being filed?

I understand your argument that technically this would not be an ex parte order, but this seems to be form over substance. Of course the prosecutor obtaining the order would know he/she is obtaining an order disclosing a person’s private, medical information, protected under state and federal laws, without giving that person an opportunity to object or be heard when the order is obtained, much less when the records are opened by the prosecutor. What about a prosecutor’s obligations to an unrepresented party?

I’ve had several cases where a prosecutor seemed genuinely suprised when confronted about getting these types of orders without notice to my client or myself-even when the orders were obtained ex parte after I had formally appeared as attorney of record. From my perspective, it would be akin to the defense attempting to obtain the medical records of say, a rape victim, by sticking an ex parte order in front of a judge during a court recess. The rape victim is not a “party,” so would she be entitled to any notice under your analysis? Of course, the defense bar regularly issues subpoenas for victims’ medical records to be produced in court, only to argue Ritchie motions for the material to be unsealed-with notice to everybody. This process gives the state, victim, and the court an opportunity to address objections and privacy concerns.

Maybe I am missing something, but if your interpretation is correct, then what would stop the defense from using ex parte orders to obtain records from each and every unrepresented “victim,” without notice to the state? And if the distinction is made that once a charge is filed we have to give notice to the DA’s office, what about the times we know a charge is likely to be filed-can we run to the court house with proposed orders stating the release of so and so’s medical/psychiatric/educational records are “necessary for the proper administrations of justice.”

Sorry for the rant, but I have a hard time justifying this process to my clients and myself in light of the overall thrust of the RPC’s and the case law in this state that characterizes defense attempts toget information held by third parties as “fishing expeditions.”

Prosecutor

October 18, 2009 at 7:10 pm

N.C.G.S 8-53 and State v. Jones may not give authority for ex parte orders, but State v. Gray, 347 N.C. 143 (1997) sure seems to. In Gray, the state issued a subpoena duces tecum to the NC Dept. of Revenue to get copies of the defendant’s tax records. The subpoena duces tecum was then followed up with an ex parte court order. The order was sought six weeks prior to the defendant’s first degree capital murder trial. Defendant tried to suppress, citing that it was ex parte. State Supreme Court said otherwise, holding:

The issuance of the subpoenas duces tecum and the issuance of the order were the gathering of evidence for use at the trial and were not stages of the trial which entitled the defendant or his attorney to be present. A defendant does not have the right to be present as the State gathers its evidence.

Granted they were not seeking medical records, but the ex parte aspect of it is still the same. Also, this was a capital case, where the Supreme Court is generally looking for an excuse to set aside the death verdict.

this poses a serious question for EMR providers as well, since the patient record often includes many feeds and inputs that are automatically scanned from other hospitals labs and sources. thanks for the informative thoughts.

JKC

March 7, 2012 at 8:54 am

The pre-charge ex parte obtaining of medical records is concerning to me. This seems like an easy way to get around the probable cause required in search warrant situations and opens the door for fishing expeditions. Both N.C.G.S 8-53 & N.C.G.S. 8-53.3 contain the following language “If the case is in district court the judge shall be a district court judge, and if the case is in superior court the judge shall be a superior court judge.” This language appears to require that either criminal or civil process to have been instituted otherwise there is no “case” and it it not in any court, district or superior. Certainly a person has an expectation of privacy in their medical information, do the 4th Amendment constitutional protections not apply? If you have probable cause, that is one thing, but when you have a collision where the investigation results in statements of potential witnesses (credibility unknown) saying “I saw the guy drinking alcohol earlier,” but the written statements of all the officers and medical folks do not mention an odor of alcohol or anything else that would indicate suspicion of impairment, it would appear that there is a lack of probable cause. If you have no probable cause you do not get a search warrant, but as I understand the position stated here probable cause is not part of the equation to obtain a pre-charge ex parte order for medical records. It would appear that the District Attorney can use this tool to obtain the information without probable cause and if he/she gets lucky and the medical records indicate alcohol consumption then “bam!’ we have probable cause, let’s go get a warrant.”
This is troubling to me because I have found that our Judges do not require much of anything other than the District Attorney saying “we need this for the proper administration of justice” and the order gets signed. The order that I’ve seen most recently required the hospital to gather the records and deliver them to the District Attorney”s office, with no judicial review of the contents of the records before they were turned over. Troubling to me.
Any thoughts on the facts described above, and/or the constitutional concerns with the practice?